# THE ATTORNEY GENERAL OF ‘TEXAS **AUSITIN,** 

### TKKAs 78711

! May 20, 1975

The Honorable Chet Brooks chairman Joint Committee onPrison Reform Senate Chamber 

### Aurtin. Texas 78711 Dear 

### Senator Brooks: Opinion No. H-611 Re: Use ofcertain line item appropriations by the Texas Department of Corrections.

You have requested our opinion regarding the use ofcertain line item appropriations by the Texas Department of Corrections.

Your firat question aeks what constraints a specific line item appropriation for a specific construction project plsces onthe Department of Corrections, andwhether expenditures **on** other construction projects are permissible. A line item appropriation must be expended only for the purpose designated therein, subject to any riders applicable to the appropriationfor the particular agency and subject further to any relevant general provisions in the Appropriations Act. Attorney General Letter Advisory No. 2 (1973); Attorney General Opinions H-444(1974); M-999 (1971); O-4769 (1942). As to appropriations for specific construction projects ofthe Department, the Act contains the following provisions inArticle III;Acts 1973, 63rd Leg., ch. 659, p. 1948.

The amounts indicated as ‘Building Appropriations’ hereinabove areappropriated subject to construction and completion of said projects by the use ofprison labor insofar as possible.

. . *
. Any unexpended balances remaining in projects under the respective items for Building Appropriations may,

p. 2705The Honorable’ Chet Brooks page 2 (H-611)

with the approval ofthe Board of Corrections, be transferred and used for the purposes of completing construction of other projects enumerated in the same item; provided, however, that copies of such approvals and copies ofrequests for Comptroller’s action on such transfers shall befiled with the Governor and the Legislative Budget Board. Thus, the unexpended balances remaining from appropriations, authorized for specific construction projects may be used for completing construction ofother projects, provided that such projects are enumerated in the same item: provided that the approval ofthe Board of Corrections is obtained; andprovided that copies of such approvals and copies of requests for Comptroller’s action onthe transfer of such funds are filed with the Governor and with the Legislative Budget Board. Unless ithas complied with these requirements, the Department may not **use** the unexpended balances appropriated for building construction for completion ofany other project.

Your second question asks about the procedure for authorizing construction of “other” projects as contemplated by the rider, and whether a “report” approved by the Board of Corrections after a construction project is substantially complete can adequately serve as evidence ofthe “approval” the rider requires.

The rider does not require that the approval ofthe Board of Corrections be evidenced by aparticular writing, butthat “copies of such approvals ” be filed with the Governor and the Legislative Budget Board. As couched in general appropriation acts prior to 1973, the rider required that expenditures on “other” projects be approved by the Governor rather than the Board of Corrections and that copies of the Governor’s approval were to be filed with the Legislative Budget Board; but inAttorney General Opinion M-1199 (1972), with reference to that rider, itwas said onpage 5:

That portion ofthe rider requiring the Governor’s approval is invalid: such approval cannot be required, but that portion requiring filing ofinformation with Budget Board is valid. M-1141 and V-1254. The agency Board must vote the transfer offunds. (Emphasis added). p. 2706The Honorable Chet Brooks page 3 (H-611)

The purpose ofthe ;‘filing” provision is toacquaint the Governor and the Budget Board with the **use** towhich the funds will be put. However, we cannot say that a project was not properly authorized merely because the evidence of “approval” filed was in some form other than a resolution ofthe Board of Corrections to transfer the funds. Whether or not a project was actually approved is aquestion offact.

Your third question asks ifan appropriation for “capital outlay” can be expended onbuilding construction. Section 10ofArticle V ofthe current general appropriation act specifies; Acts 1973, supra at p. 2202.

Funds appropriated
. . . initems designated for
. . . capital outlay
. . . shall be expended only for items set out inthe Comptroller’s Manual ofAccounts, Expenditure Classification, effective November 1, 1965, as amended, and numbered
. . . 60 to 69for ‘capital outlay. ’ Expenditure classification no. 68 from the Manual ofAccounts is “Building Purchased, Constructed or Remodeled” the purpose of which is described by the manual:

. . . to record payment for materials and/or contract labor for construction or remodeling of state owned buildings. Does not include payments for repair or maintenance jobs. We answer your third question inthe affirmative. **Your** last question inquires as towhether the funds appropriated for “classified salaries” may be expended in any other manner. A rider to the Department of Corrections appropriation inArticle IIIprovides:

From the line appropriation for Salaries of Classified Positions the Department of Corrections is authorized to purchase electronic security devices for installations on compoind fences to minimize security risks while reducing the number ofofficers required to man outside pickets, provided that the purchase ofthose devices will not necessitate any supplemental or additional appropriation out ofany funds ofthis State. Acts 1973, ~upra at 1950. p. 2707--.

*

The Honorable Chet Brooks page 4 (H-611)

Furthermore, a general rider inArticle V oftheAppropriations Act states that; Acts 1973, supraat p. 2195:

Appropriations for ‘Salaries of Classified Positions’ may also be used topay the salaries ofpositions exempted from the Classification Plan by the Governor under authority granted in Section 2ofthe Position Classification Act of 1961. Sec. l(t) Thus, the General Appropriations Act provides that the funds appropriated to the Department of Corrections for classified salaries may be expended **to** pay the salaries ofpositions exempted from the Classification Plan by the Governor, and, subject to the stated proviso, may be expended for the purchase ofelectronic security devices for installation on compound fences. SUMMARY A line item appi-opriation may be expended only for the purpose designated therein, subject toany riders applicable to the appropriation for the particular agency and subject further toany relevant general provisions in theAppropriations Act. Whether or not an agency action complies with the requirements ofan Appropriations Act rider is sometimes aquestion of fact. Whether 

### an expenditure is proper as a “capital outlay” is determined by the Comptroller’s Manual of Accounts, and Appropriation Act riders authorize the use4Dr certain other purposes ofmonies appropriated to the Department of Corrections for “classified salaries. ” Very truly yours,

/ /JOHN L. HILL I/ Attorney General of Texas

p. 2708The Honorahle Chet Brooks page 5 (H-611)

DAVID &f.KENDALL, First Assistant

C. ROBERT HEATH, Chairman Opinion Committee 

# lg

p. 2709